Electronic age pits privacy against open records

Concern about a lack of privacy in the Digital Age is fueling efforts to keep more court records off the Internet entirely, despite the presumption that court hearings and information should be open to the public.

The tension between privacy rights and the public's right to know were explored in a panel titled "Secrecy in the Electronic Age" Tuesday at the 2007 9th Circuit Judicial Conference, held at the Sheraton-Waikiki Hotel. Scenarios that came up during the discussion included:

» A confidential government informant finds her name, photo and address posted on a Web site with the headline, "Who's a Rat?"

» A court clerk mistakenly posts information on the Internet that should have been kept private, but it is hard to take it back once it is out there.

» Private information officially deleted from an electronic court record is restored by a computer hacker for all to see.

Electronic access to court files and instantaneous dissemination of information is raising new concerns that were not an issue when people had to pore through documents at the courthouse or sit through long court hearings to gather information.

"I think the concern about this is really the speed with which that information can get out there," said Debra Wong Yang, a former U.S. attorney in California who is now a partner in the Los Angeles firm of Gibson, Dunn & Crutcher. "It's the speed of a keystroke. What if it's wrong?"

She added, "Once the information is out, you can't get it back, and you're going to have to err on the side of being overinclusive."

The Justice Department has been pushing to remove all plea agreements from electronic files in order to keep witnesses from being intimidated or harassed. In civil cases more companies are using the rubric of protecting trade secrets to keep their settlements out of public view.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said it is important not to overreact to privacy concerns.

"The privacy folks have been using the Electronic Age to build support for their notion that more and more stuff needs to be secret," she said.

Even the identity of jurors is being kept secret more often these days. While that is necessary to protect jurors in some cases, it should not be a blanket policy, she said.

"Traditionally, we all knew who the jurors were who were trying us. It was the right to a trial by a jury of our peers," Dalglish said. "In the last five years, there's been this notion of juror privacy."

Senior District Judge Terry Hatter of the Central California District said that once a trial is over, lawyers and reporters should have the freedom to ask jurors about their experience. Talking about a case can reveal whether the judge and jurors performed their jobs fairly, he said.

"I encourage it," Hatter told the conference. "You learn so much from the jurors."